Santa Clara Law Review
Volume 31 | Number 2
Article 6
1-1-1991
The Decline of the Great Writ: An Analysis of
Teague v. Lane
Sharon K. Alexander
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Recommended Citation
Sharon K. Alexander, Comment, The Decline of the Great Writ: An Analysis of Teague v. Lane, 31 Santa Clara L. Rev. 525 (1991).
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THE DECLINE OF THE GREAT WRIT: AN ANALYSIS
OF TEAGUE V. LANE
I.
INTRODUCTION
In recent times, habeas corpus' has undergone severe
attack. The attack takes the form of a new retroactivity doctrine. Generally speaking, when a judicial decision is used retroactively, it is applied to those cases that arose prior to the
announcement of the decision. By prohibiting the retroactive
treatment of constitutional rules of criminal procedure, the Supreme Court has effectuated what may prove to be a complete
reformation of the "Great Writ."2
The term "habeas corpus" refers to the writ of habeas
© 1990 by Sharon K. Alexander.
* The author wishes to thank Professor Russell Galloway for his inspiration.
1. Habeas corpus ad subjiciendum is the most common form of habeas writ.
39 AM. JUR. 2d Habeas Corpus § 2 (1968). It is described as a writ of inquiry.
Porter v. Porter, 60 Fla. 407, 53 So. 546 (1910); Addis v. Applegate, 171 Iowa
150, 154 N.W. 168 (1915); Smith v. Henson, 298 Ky. 182, 182 S.W.2d 666 (1944).
The writ of habeas corpus is given explicit recognition in the Federal Constitution.
Under statutory authorization, the power to issue a writ of habeas corpus belongs
to the Supreme Court and its justices, circuit judges and district courts. 28
U.S.C.S. § 2241 (Law. Co-op. 1979 & Supp. 1985). "The writ of habeas corpus is
a procedural device for subjecting executive, judicial, or private restraints on
liberty to judicial scrutiny. Where it is available, it assures among other things that
a prisoner may require his jailer to justify the detention under law." Peyton v.
Rowe, 391 U.S. 54, 58 (1968). The writ of habeas corpus is a civil remedy, Fx
parte Tom Tong, 108 U.S. 556, 559 (1883); "[it] is not a proceeding in the original criminal prosecution but an independent civil suit." Riddle v. Dyche, 262 U.S.
33 (1923).
2. The term "Great Writ" refers to a writ of habeas corpus ad subjiciendum.
Fay v. Noia, 372 U.S. 391, 399 (1963); Carbo v. United States, 364 U.S. 611
(1961); Price v. Johnston, 334 U.S. 266 (1948).
Although in form the Great Writ is simply a mode of procedure, its
history is inextricably intertwined with the growth of fundamental
rights and liberty. For its function has been to provide a prompt and
efficacious remedy for whatever society deems to be intolerable restraints. Its root principle is that in a civilized society, government
must always be accountable to the judiciary for a man's imprisonment: if the imprisonment cannot be shown to conform with the
fundamental requirements of law, the individual is entitled to his
immediate release.
Fay v. Noia, 372 U.S. 392, 401-02 (1963).
SANTA CLARA LAW REVIEW
[Vol. 31
corpus ad subjiciendum, which requires that a person detain3
ing a prisoner produce the prisoner. The writ serves as a rem4
edy for those illegally deprived of their liberty, and its importance is given explicit recoginition in the United States Constitution: "The privilege of the Writ of Habeas Corpus shall not
be suspended, unless when in Cases of Rebellion or Invasion
5
the Public Safety may require it." In 1830, Chief Justice Marshall wrote that the writ of habeas corpus "is a high prerogative writ known to the common law, the great object of which
is the liberation of those who may be imprisoned without sufficient cause."6 "The writ of habeas corpus has played a great
role in the history of human freedom. It has been the judicial7
personal liberty."
method of lifting undue restraints upon
Blackstone called the writ "the most celebrated writ in the
English law."' It is to this long and extolled history that the
current state of the law must be compared.
In Teague v. Lane,9 the Supreme Court asserted that it was
adopting the retroactivity doctrine developed by Justice John
M. Harlan. Since an understanding of Justice Harlan's philosophy on retroactivity is necessary to a thorough and correct
understanding of Teague, Harlan's approach and the .state of
the law which prompted his opinions will be outlined in this
comment.' ° The Teague decision and its implications will be
explored," as will be subsequent Supreme Court decisions
2
which clarify and comment on Teague. Finally, this comment
will offer a critical perspective on Teague and its progeny, as
to sort out the current state
well as several proposals intended
13
of the law of habeas corpus.
3. BLACK'S LAw DICTIONARY 709 (6th ed. 1990).
4. Carbo v. United States, 364 U.S. 611 (1961).
5. U.S. CONST. art. 1, § 9, cl.2.
6. Ex parte Watkins, 28 U.S. 193 (1830).
7. Price v. Johnston, 334 U.S. 266, 269 (1948).
8.
3 W. BLACKSTONE COMMENTARIES *129.
9. 489 U.S. 288 (1989), reh'g denied, 490 U.S. 1031 (1989).
10.
11.
12.
13.
See
See
See
See
infra
infra
infra
infra
notes 23-65 and accompanying text.
notes 67-111 and accompanying text.
notes 11248 and accompanying text.
note 176 and accompanying text.
1991]
ANALYSIS OF TEAGUE V. LANE
527
II. BACKGROUND
Lane 4
Teague v.
presented a new approach to retroactivity as applied to habeas corpus review. Prior to Teague, the
standard for determining whether rulings should be applied
retroactively was governed by Linkletter v. Walker. 5 Linkletter
called for a case-by-case balancing of various factors, the central issue being whether to allow the habeas petitioner the
benefit of the current law or, contrarily, to allow him only that
body of law available at the time his conviction became final. 6 Teague abandoned the Linkletter balancing test in favor
of a rigid, threshold inquiry.
Teague held that the question of retroactivity is a threshold
matter to be addressed before reaching the merits of any habeas petition. 7 If a court concludes that the petitioner seeks a
"new rule" applied to his claim, then the petitioner receives no
further review regardless of the merits of his claim. The Court
allows two exceptions to this general proscription. The first
exception concerns conduct which is outside the scope of any
criminal law-making authority.' Presumably, if a petitioner
seeks the benefit of a rule which places his conduct beyond
law-making authority, he will not be barred from further judicial review.
The second exception distinguishes the rules of criminal
procedure generally from those rules which form the very
foundation of criminal procedure and without which a defendant would be denied a fair trial. If a petitioner's claim is
based on the latter, he is entitled the benefit of the rule and
will not be procedurally barred from review.' 9 It is important
to note that the Teague Court thought it unlikely that such
rules have yet to be announced, and thus, to fall under the
auspices of "new." It is more likely, according to the Court,
that those rules are already firmly established in our procedur0
2
al structure.
14.
15.
16.
17.
18.
19.
20.
489 U.S.
381 U.S.
See infra
See infra
See infra
See infra
See infra
288 (1989).
618 (1965).
note 29 and accompanying text.
note 76 and accompanying text.
text accompanying note 92.
notes 94-95 and accompanying text.
text accompanying notes 97-99.
SANTA CLARA LAW REVIEW
528
[Vol. 31
The idea of denying a new rule retroactive application
unless it meets defined criteria, thus qualifying it as an exception, originated with Justice Harlan. The Teague Court made
clear that it was, in fact, deriving its holding from Harlan's
approach. Generally speaking, the Teague decision represents
the second element of Harlan's retroactivity doctrine. The first
element concerned direct review, in which Harlan favored full
retroactive application of subsequently announced decisions to
all cases not yet final or, in other words, to all cases still within
the appellate process. This has since become the accepted
practice.2 '
As for habeas review, Harlan believed that retroactivity
had never presented a substantial problem when habeas review
was of a narrower scope. However, the scope of federal habeas
22
review was expanded by Fay v. Noia, which explicitly recognized federal habeas jurisdiction over state court decisions and
provided a lenient standard by which federal courts could
grant review of habeas petitions. The contemporaneous expansion of the scope of habeas corpus, and what Harlan perceived
as abuses of the flexible Linkletter balance, prompted him to
create and set forth an alternative standard for retroactivity.
The question that remains is whether the Court's approach set forth in Teague is a modern adaptation of Harlan's
approach or simply a flat ban on retroactive application of
criminal procedure law except in the rarest of cases. Should
the Court abandon its very restrictive version of Harlan's test
in favor of a general prohibition of retroactivity in the criminal
procedure context? Or is there some advantage in clothing the
test in Harlan's perceived sense of equity?
A.
Retroactivity Priorto Teague v. Lane
23
Prior to Linkletter v. Walker, new constitutional rulings
were applied to all cases arising thereafter and to all previously
is
decided cases still subject to judicial review. This practice
24 In
known as retroactive application of judicial decisions.
21. Griffin v. Kentucky, 479 U.S. 314, 322 (1987).
22.
23.
24.
years."
(1910)
Fay v. Noia, 372 U.S. 391 (1963).
381 U.S. 618 (1965).
"Judicial decisions have had retrospective operalion for near a thousand
6
I. at 622 n. (quoting Kuhn v. Fairmont Coal Co., 215 U.S. 349, 372
dissenting)).
J.,
(Holmes,
1991]
ANALYSIS OF TEAGUE V LANE
529
1809, Blackstone2 5 commented on the practice by noting that
the court's duty was not "to pronounce a new law, but to maintain and expound the old one." 26 In 1965, the Linkletter Court
discarded the traditional practice, declaring that "the Constitution neither prohibits nor requires retrospective effect." 27 Borrowing language from Chicot Drainage District v. Baxter State
Bank,28 the Court formulated a balancing approach to determine whether to apply a decision retroactively. The factors employed in the balancing included: 1) the purpose of the rule
and the extent to which its purpose was furthered by retroactive application; 2) the reliance placed upon the past precedent by law enforcement entities; and 3) the effect of retroactive application on the administration of justice.2 9 In
Linkletter, the Court concluded that it would not apply the
exclusionary rule set forth in Mapp v. Ohio3s
to Linkletter's
state court conviction which had become final on direct review
before the announcement of Mapp.s'
25. Blackstone, as a legal writer, attempted to simplify the law so it could be
understood by the layperson. Blackstone considered himself an "academic expounder of the laws" and his commentaries may be described as "a general map
of the law." 1 W. BLACKSTONE, COMMENTARIES *35. See genet-ally S.F.C. Milsom,
The Nature of Blackstone's Achievement, Lecture Delivered at Oxford to the
Seldon Society (May 31, 1980) (unpublished manuscript).
26. 1 W. BLACKSTONE, COMMENTARIES *69.
27. Linkletter, 381 U.S. at 629. In Great Northern Ry. Co. v. Sunburst Oil &
Refining Co., 287 U.S. 358, 364 (1932), Justice Cardozo stated, "[wie think the
federal constitution has no voice upon the subject."
28. 308 U.S. 371, 374 (1940), reh'g denied, 309 U.S. 695 (1940). In Chicot,
bondholders who were parties in a former proceeding which was brought under
an act which was later declared unconstitutional were estopped from raising the
question of constitutionality in a subsequent action. Id.
29. Linkletter, 381 U.S. at 636. The Court made the following comment:
[Tihe effect of the subsequent ruling of invalidity on prior final judgments when collaterally attacked is subject to no set 'principle of
absolute retroactivity invalidity' but depends upon a consideration of
'particular relations . . . and particular conduct . . . of rights claimed
to have become vested of status, of prior determinations deemed to
have finality'; and of 'public policy in the light of the nature both of
the statute and of its previous application.'
Id. at 627 (quoting Chicot, 308 U.S. at 374 ).
30. 367 U.S. 643 (1961), reh'g denied, 368 U.S. 871 (1961) (overruling Wolf v.
Colorado, 338 U.S. 25 (1949)). The Mapp Court held that due process required
state courts to exclude from trial all evidence unconstitutionally seized.
31. It should be noted that Linkletter v. Walker, 318 U.S. 618 (1965), was
decided prior to Stone v. Powell, 428 U.S. 465 (1976), when fourth amendment
challenges were still allowed on habeas review.
530
SANTA CLARA LAW REVIEW
[Vol. 31
The Linkletter Court took care to limit its holding to the
issue of retroactive application on habeas review.32 However,
the distinction between those seeking retroactive application of
a new rule on petition for habeas corpus and those on direct
review was later found inconsequential in Stovall v. Denno."
Subsequent decisions applying Linkletter varied considerably in
their purposes and results.
34
32. "[W]e are concerned only with whether the exclusionary principle enunciated in Mapp applies to state court convictions which had become final before
rendition of our opinion." Linkletter, 381 U.S. at 622. Tie implication is that the
Linkletter Court accepted the practice of retroactive application of new decisions to
cases that were still subject to direct review. Habeas corpus provides a remedy for
criminal cases even after direct review has been exhausted and therefore, may be
distinguished on this point.
33.
388 U.S. 293, 300 (1967). "We .
. conclude that . . . no distinction is
justified between convictions now final as in the instant case, and convictions at
various stages of trial and direct review." However, it must be noted that the
distinction is fundamental to Harlan's beliefs and can account largely for whether
Harlan expressed those beliefs in a concurring or dissenting opinion.
34. In Desist v. United States, 394 U.S. 244 (1969), the Court held that Katz
v. United States, 389 U.S. 347 (1967), which concluded that evidence obtained by
electronic listening device was excluded because the government's activities violated
the petitioner's reasonable expectation of privacy, should be applied prospectively
only. In Williams v. United States, 401 U.S. 646 (1971), the Court held that
Chimel v. California, 395 U.S. 752 (1969), which narrowed the scope of permissible searches incident to lawful arrest, was not to be retroactively applied to
searches which occurred before Chimel was decided. Tehan v. United States ex rL
Shott, 382 U.S. 406 (1966), held that the doctrine of Griffin v. California, 389
U.S. 609 (1965), which held that a state prosecutor may not comment on a
defendant's failure to testify, would not be applied retroactively. StovaI4 388 U.S.
at 293, addressed the decisions put forth in United States v. Wade, 388 U.S. 218
(1967), and Gilbert v. California, 388 U.S. 263 (1967), which held that a
post-indictment lineup is a critical stage to which the sixth amendment right to
counsel applies and that testimony relating to prior identification at lineups in
violation of the right to counsel is always excluded, respectively. Stovall concluded
these decisions were to be given effect only in cases where the activities in error
took place after the decisions were announced. Johnston v. New Jersey, 384 U.S.
719 (1966), held that Miranda v. Arizona, 384 U.S. 436 (1966), reh'g denied, 385
U.S. 436 (1966), and Escobedo v. Illinois, 378 U.S. 478 (1964), should apply only
to those cases where trials had begun after the decisions were handed down.
But see McConnell v. Rhay, 393 U.S. 2 (1968) (retroactive application of
Mempa v. Rhay, 389 U.S. 128 (1967), requiring counsel to be provided during
revocation of probation and imposition of deferred sentence). United States v.
Johnston, 457 U.S. 537 (1982), called for retroactive application of Payton v. New
York, 445 U.S. 573 (1980) (prohibiting warrantless and nonconsensual entries in
connection with felony arrests), to all convictions not yet final.
1991]
ANALYSIS OF TEAGUE V LANE
531
B. Justice Harlan'sApproach to Retroactivity
36
5
Four years after Linkletter v. Walker, Justice Harlan
began expressing his disenchantment with the developing
course of retroactivity." According to Harlan, giving new
constitutional rules whole or partial retroactive treatment or
only prospective treatment was simply a way by which the
Court furthered its own judicial policies.3 Admitting that he
too had played a part in this thwarting of the law, Justice
Harlan renounced his former position and proposed a scheme
for retroactivity which turned on whether
a claim was before
39
the Court on direct or collateral review.
1. Retroactivity on Direct Review
Harlan asserted that when a case reaches the United States
Supreme Court on direct review,4" the basic duty of the
35. 381 U.S. 618 (1965).
36. See generally THE EVOLUTION OF JUDICIAL PHILOSOPHY: SELECTED OPINIONS
AND PAPERS OF JUSTICE JOHN M. HARLAN (D. Shapiro ed. 1969); 6 THE SUPREME
COURT OF THE UNITED STATES: HEARINGS AND REPORTS ON SUCCESSFUL AND
UNSUCCESSFUL NOMINATIONS OF THE SUPREME COURT JUSTICES BY THE SENATE
JUDICIARY COMMITTEE 1-182 (R. Merskey & J. Jacobstein eds. 1975); Ballantine,
John M. Harlan for the Supreme Court, 40 IOWA L. REV. 391 (1955); Friedman, Mr.
Justice Harlan, 30 NOTRE DAME L. REV. 349 (1955).
Justice Harlan was noted for his firmly held convictions concerning federal
respect for legitimate state interests, deference to the principles of separation of
powers between the three branches of government, and the doctrine of fundamental fairness. In addition, he believed in fidelity to' judicial precedent. See
Bourguignon, The Second Mr. Justice Harlan: His Principles of Judicial Decision Making, 1979 Sup. CT. REV. 251, 277. He believed the Court should respect precedent
and avoid interjecting "uncertainties into a field already plagued by excessive
refinements." Detroit v. Murrau Corp., 355 U.S. 489, 510 (1958) (larlan, J.,
concurring and dissenting).
37. Desist v. United States, 394 U.S. 244 (1969) (Harlan, J., dissenting).
38. Mackey v. United States, 401 U.S. 667, 677 (1971). Harlan noted that
"the Court is free to act, in effect, like a legislature, making new constitutional
rules wholly or partially retroactive or only prospective as it deems wise." Id.
39. Direct review can be said to encompass all opportunities available for
appellate review. Collateral remedies, as recognized today, consist of writs of coram nobis and habeas corpus. A writ of coram nobis is a method of relief for errors of fact which, if known at the time of trial, would have produced a different
outcome. "Habeas corpus always has been a collateral remedy, providing an
avenue for upsetting judgments that have become otherwise final." Mackey, 401
U.S. at 683.
40. Very few cases reach the Supreme Court as a matter of right; the majority of cases the Supreme Court hears on appeal come under tihe discretionary writ
SANTA CLARA LAW REVIEW
[Vol. 31
Court is adjudication of the case according to the law of the
4
land and application of the Federal Constitution as needed.
The announcement of a new constitutional rule-was correlative
to the Court's primary function.42 In Harlan's belief, "simply
fishing one case from the stream of appellate review, using it
as a vehicle for pronouncing new constitutional standards, and
then permitting a stream of similar cases subsequently to flow
4
by unaffected" was contrary to the Court's duty." He conclud44
ed that the retroactive application of "new rules" of constitutional law was appropriate in all cases before the court on
direct review.45
2.
Retroactivity on CollateralReview
In addressing retroactivity on collateral review, Harlan
began by describing the "nature, function, and scope of the
adjudicatory process."46 Harlan contended that habeas review
was not a substitute for direct review: "While the entire theoretical underpinning of judicial review and constitutional supremacy dictate that federal courts having jurisdiction on direct review adjudicate every issue of law ... federal47 courts
corpus."
have never had a similar obligation on habeas
of certiorari. See generally 28 U.S.C. §§ 1254, 1257 (1988).
41. Mackey, 401 U.S. at 678-79 (citing Marbury v. Madison, I Cranch 137,
177-78 (1803)).
42. Id.
43. Id. at 679. In addition, Harlan expressed concern for the inferences
drawn by the lower courts from the Supreme Court's retroactivity holdings. If a
lower court arrived at the same conclusion as did the Supreme Court but before
the Supreme Court's decision could be given effect, the lower court was in error
and was reversed. Similarly, a lower court deciding consistently with outdated
precedent was subsequently upheld. Harlan believed this process served as a
disincentive for lower courts to develop and interpret constitutional law. Id. at
680.
44. The definition of a "new rule" for purposes of retroactivity is far from
settled, as will be shown in this comment.
45. It is important to note that this portion of I larlan's proposal was not
contrary to Linkietter. In fact, Linkletter relied on the distinction between direct
and collateral review. See supra note 32.
46. Mackey v. United States; 401 U.S. 667, 682 (1971). In 1976, the scope of
habeas corpus was significantly limited by Stone v. Powell, 428 U.S. 465 (1976).
"[Wlhere the State has provided an opportumity for full and fair litigation of a
Fourth Amendment claim, a state prisoner may not be granted federal habeas
relief on the ground that evidence obtained in an unconstitutional search and
seizure was introduced at his trial." Stone, 428 U.S. at 494.
47. Mackey, 401 U.S. at 695. Justice Harlan contended that the United States
1991]
ANALYSIS OF TEAGUE V. LANE
533
Justice Harlan noted that retroactivity had not presented a
substantial problem when habeas review was of a narrower
scope-that is, when arguments raised for the first time were
excluded if the petitioner had been given fair opportunity to
raise the argument at the original trial. 8 Yet, Harlan acquiesced to the expansion of the "Great Writ" and attempted to
determine the scope of habeas corpus under the current
framework of the law.49
Supreme Court had no power to release a prisoner whose conviction rested "upon
an adequate and independent state ground which the federal courts are required
to respect." Fay v. Noia, 372 U.S. 391, 448 (1963) (Harlan, J., dissenting).
48. Harlan was referring to the state of the law prior to Brown v. Allen, 344
U.S. 443 (1953), which held that a court considering a habeas petition was entitled to consider the merits of a petitioner's claim and rule on the merits, notwithstanding prior state adjudication. For an interesting discussion on legislative
proposals regarding the expanding and contracting availability of federal habeas
corpus for litigating state prisoner's claims, see Sallet & Goodman, Closing the Door
to Federal Habeas Corpus: A Comment on the Legislative Proposals to Restrict Access in
State Procedural Default Cases, 20 AM. CRIM. L. REv. 465 (1983).
49. Harlan believed the expansion of habeas corpus to be an "unfortunate
display of insensitivity to the principles of federalism which underlie the American
legal system." Mackey, 401 U.S. at 685. To a great extent, the expansion can be
attributed to Fay, 372 U.S. at 391 (1963), overruling recognized in United States ex
rel. Falconer v. Lane, 720 F. Supp. 631 (N.D. III. 1989); Clark v. Ricketts, 886
F.2d 1152 (9th Cir. 1989).
In Fay, 372 U.S. at 430, Justice Brennan, writing for the majority, explicitly
recognized federal habeas jurisdiction. The "jurisdictional prerequisite" for a writ
of habeas corpus "[was] not the judgment of the state court, but detention simpliciter." In other words, habeas jurisdiction extends to "the body of the petitioner" not the state court's judgment. Id. at 431. Fay held that the Court has no
obligation to deny a petition in response to procedural defaults occurring during
state proceedings. However, the Court has the ability to limit review in instances
where "the suitor's conduct in relation to the matter at hand may disentitle him
to relief," specifically, where the petitioner's conduct takes the form of "deliberately by-pass[ing] the orderly procedure of the state court." Id. at 438.
Justice Harlan stated, "[it] is clear that a State may not preclude Supreme
Court review . . . [however,] . . . determination of the adequacy and independence of that state ground . . . marks the constitutional limit of our power in
this sphere." Id. at 465-66 (Harlan, J., dissenting).
The "deliberate by-pass" standard introduced by Fay was severely criticized
and eventually abandoned. In Wainwright v. Sykes, 433 U.S. 72 (1977), Justice
Rehnquist characterized the deliberate by-pass standard as an interference to the
proper function of a trial. The "failure of the federal habeas courts generally to
require compliance with a contemporaneous-objection rule tends to detract from
the perception of the trial in a criminal case . . . as a decisive and portentous
event." Id. at 90. The Court opted for a stricter cause and prejudice standard for
determining when a procedural default bars habeas review. Although the deliberate by-pass rule was overruled, Fay's jurisdictional holding is still valid. Falconer
720 F. Supp. at 637.
SANTA CLARA LAW REVIEW
[Vol. 31
First, Harlan proposed that a writ of habeas corpus permits an examination of any possible constitutional defect in
any criminal trial where the habeas petitioner remained imprisoned because of such defect.5" Second, habeas "provides a
quasi-appellate review function, forcing ...
courts ...
to toe
5'
the constitutional mark." Nevertheless, Harlan believed the
deterrent effect of habeas review could be achieved simply by
allowing the court to apply the52constitutional law in existence
at the time of the original trial.
Harlan acknowledged the interest in uniform treatment of
prisoners as well as the interest in correcting past abuses of
53
justice in light of changing social norms. At the same time,
he suggested that those interests were overstated and pos4
sessed more emotional than analytical strength. He believed
55
the countervailing interest in finality went largely unnoticed.
50. Harlan's original statement is contained in his dissenting opinion in Desist
v. United States, 394 U.S. 244 (1969). In Desist, he suggested that the first purpose of habeas corpus was to impel the prevention of a petitioner remaining
incarcerated because of a procedure which instilled an "impermissibly large risk
that the innocent will be convicted." Id. at 262. In Mackey, 401 U.S. at 685-86, he
expanded this statement to incorporate Kaufman v. United States, 394 U.S. 217
(1969) (extending 28 U.S.C. § 2255 (Supp. V 1964), the collateral remedy for federal prisoners, to all constitutional claims). Justice Harlan willingly accepted the
proposition that a new constitutional rule greatly improving fact-finding procedure
should be given retroactive application. See Kaufmaan, 394 U.S. at 235-36 (Black, J.,
dissenting). However, even in light of its expanded purpose, a habeas court did
not need to give every new constitutional rule retroactive application. Desist, 394
U.S. at 263.
51. Mackey v. United States, 401 U.S. 667, 687 (1971).
52. Desist, 394 U.S. at 263.
53. These interests are what Justice Harlan characterized as countervailing
interests and were asserted by those in support of extending habeas to any alleged constitutional error. Mackey, 401 U.S. at 687-89.
54. Id. at 689-90.
55. Harlan stated that "[i]t is . . . a matter of fundamental import that there
be a visible end to litigatable aspects of the criminal process." Id. at 690. In Sanders v. United States, 373 U.S. 1, 24-25 (1963) (Harlan, J., dissening), Harlan wrote
the following:
Both the individual criminal defendant and society have an interest in
insuring there will at some point be the certainty that comes with an
end to litigation, and that attention will ultimately be focused not on
whether a conviction was free from error but rather on whether the
prisoner can be restored to a useful place in the community.
Id.
The concept of finality as it applies to the availability of habeas review has
been an increasingly popular issue since Harlan's commentaries on the subject. See
Engle v. Isaac, 456 U.S. 107, 127 (1982); United States v. Addonizio, 442 U.S.
1991]
ANALYSIS OF TEAGUE V. LANE
Accordingly, Harlan concluded that the limited scope, nature,
and function of habeas review, when combined with the interest in finality, necessitated the application of the law in effect
at the time of a criminal defendant's final conviction. Whether
a defendant could benefit from a constitutional rule announced subsequent to the conviction involved a determination as to whether the subsequent decision announced a "new
rule.""6
The determination of when a decision announces a new
rule is difficult. The decision may have "simply applied a
well-established constitutional principle to govern a case which
is closely analogous to those which have been previously considered in prior case law."57 Unfortunately, Harlan provided
little commentary as to what he believed was a new rule. However, he did suggest that a decision resulted in a new rule
when one could refer to a point in time when the court clearly
would have decided differently.5"
If it was determined that a decision constituted a new
rule, Harlan provided two exceptions to his general proposal
that habeas petitioners should be precluded from obtaining
retroactive application of a new rule. First, a rule which interprets the Constitution as protecting "certain kinds of primary,
private individual conduct"5" should be given full retroactive
effect. Harlan qualified his discussion of the retroactivity doctrine by emphasizing that only new rules dealing with procedural due process were at issue." A "new 'substantive due
process' rule" was simply another way to describe a rule falling
within the first exception.6 '
178, 184-85 n.l (1979). See also Bator, Finality in Criminal Law and Federal Habeas
Corpus for State Prisoners, 76 HARv L. REV. 441 (1963); Friendly, Is Innocence Irrelevant?, 38 U. CHI. L. REV. 142, 146-51 (1970).'
56. Desist v. United States, 394 U.S. 244, 263 (1969).
57. Id.
58. Harlan contrasted gradual development of fundamental principles of law
with those decisions when, at a specific point in time, the Court clearly would
have decided differently. As an example, he referred to the state of the law
surrounding the fourth amendment prior to Silverman v. United States, 365 U.S.
505 (1961) (concluding an illegal search occurred when a listening device was
inserted into a party wall, abrogating the mere words doctrine), and then thereafter. Desist, 394 U.S. at 264.
59. Mackey v. United States, 401 U.S. 667, 692"(1971).
60. Id.
61. Id.
[Vol. 31
SANTA CLARA LAW REVIEW
Second, Harlan reasoned that a rule requiring the observance of procedures "implicit in the concept of ordered liberty" would deserve retroactive application.6 2 However, a
court's decision which did not violate a criminal procedural
rule mandated by the Constitution should be presumed to
reflect a fundamentally fair adjudication." Justice Harlan recognized that a society can change its "perceptions of what [it]
can rightly demand of the adjudicatory process" 64 and, as a
result, these perceptions "will properly alter our understanding
of bedrock procedural elements. "65 A rule reflecting these
changes must be given retroactive application.
In summary, Harlan believed that certain rules of criminal
procedure could be characterized as "new." A new rule, by its
very definition, marked a point in time when the courts would
have clearly decided a relevant issue differently. A habeas petitioner whose conviction becomes final prior to the decision
creating the new rule may not subsequently benefit from that
62. Id. (employing language from Justice Cardozo's opinion in Palko v. Connecticut, 302 U.S. 319, 325 (1937)). The concept of "ordered liberty" arose from
the historical debate centered around the fourteenth amendment and the extension of the Bill of Rights to the states. Ordered liberty is inextricably tied to tile
fundamental fairness doctrine which prevailed from the early 1930's through the
early 1960's. See Powell v. Alabama, 287 U.S. 45 (1932) (tile first case to adopt
the fundamental fairness doctrine). Justice Frankfurter articulated tile fundamental
fairness doctrine in Adamson v. California, 332 U.S. 46 (1947). He maintained
that the fourteenth amendment "neither comprehends the specific provisions by
which the founders deemed it appropriate to restrict the federal government nor
is it confined to them. The Due Process Clause of the Fourteenth Amendment
has an independent potency." Id. at 66. See generally C. FETNER, ORDERED LIBERTY:
LEGAL
REFORM
IN
THE
TWENTIETH
CENTURY
(1988).
The
ordered
liber-
ty/fundamental fairness doctrine was eventually abandoned in favor of selective
incorporation. See Mapp v. Ohio, 367 U.S. 643 (1961); Robinson v. California, 370
U.S. 660 (1962); Ker v. California, 374 U.S. 23 (1963); Gideon v. Wainwright, 372
U.S. 335 (1963). In 1964, selective incorporation became the majority view. See
Malloy v. Hogan, 378 U.S. 1 (1964) (holding the privilege against self-incrimination
to be a fundamental right protected by the fifth amendment and rejecting the
contention that the protection afforded by the due process clause was less stringent than that afforded under the fifth amendment).
63. The term "fundamental fairness" is often equated with the fundamental
fairness doctrine. The doctrine interprets the due process clause as protecting an
individual's "fundamental" rights, and thus, the due process clause prohibits state
action which effects a violation of those rights. Those who advocate the fundamental fairness doctrine take the position that the Bill of Rights is not necessarily
incorporated into the due process clause of the fourteenth amendment. W.
LAFAVE, J. ISRAEL, CRIMINAL PROCEDURE 41 (1985).
64. Mackey v. United States, 401 U.S. 667, 693 (1971).
65. Id.
ANALYSIS OF TEAGUE V. LANE
1991]
holding. The two exceptions to the general denial of retroactive application ensure the petitioner substantive due process
and a fundamentally fair trial by allowing retroactive application of rules dictated by these concepts. Despite Harlan's efforts to reform the retroactivity doctrine, the Linkletter balancing approach remained the standard until Teague v. Lane.6 6
III.
A.
TEAGUE V. LANE - OVERRULING LINKLETrER
Facts and Procedure
In Teague, the petitioner was a black man who was convicted of attempted murder, armed robbery, and aggravated battery.6 7 During jury selection,6" the state prosecutor exercised
each of his ten peremptory challenges to excuse blacks.69 The
result was an all-white jury. Petitioner's lawyer moved for a
mistrial on two separate occasions, but both motions were denied. Petitioner appealed to the Illinois Appellate Court on the
grounds that the prosecutor's use of peremptory challenges
effectively denied him the right to a jury representing a fair
cross-section of the community. 7' This appeal was unsuccess-
66. 489 U.S. 288 (1989), rehg denied, 490 U.S. 1031 (1989).
67. Id. at 292-93.
68. Voir dire is the preliminary examination of a juror. BLACK'S LAxW DICTIONARY 1575 (6th ed. 1990). Voir dire is performed by both defending and prosecuting counsel and is for the purpose of creating an impartial jury. United States
v. Liddy, 509 F.2d 428 (1974), ceti. denied, 420 U.S. 911 (1975). See generally FED.
R. CRIM. P. 24 notes 71-140.
69. The peremptory challenge is used in both civil and criminal settings to
challenge a juror. BLACK'S LAW DICTIONARY 1136 (6th ed. 1990). The peremptory
challenge is "frequently exercised on the grounds thought irrelevant to legal proceedings or official actions, namely the race, religion, nationality, occupation or
affiliation of people summoned for jury duty." Swain v. Alabama, 380 U.S. 202,
220 (1965). It is presumed that peremptory challenges are based on legitimate
concerns. People v. Wheeler, 22 Cal. 3d 258, 583 P.2d 748, 148 Cal. Rptr. 890
(1978). The equal protection clause forbids the prosecutor to challenge potential
jurors solely on account of their race or on the assumption that black jurors, as a
group, will be unable to consider impartially the State's case against a black
defendant. Batson v. Kentucky, 476 U.S. 79 (1986). The requirements set forth to
establish a prima facie case of purposeful discrimination are as follows: 1) defendant must show that he is a member of a cognizable racial group; 2) that the
group's members have been excluded from the defendant's jury by peremptory
challenges made by the prosecutor; and 3) there are circumstances which indicate
that the exclusion was based on race. Balson, 476 U.S. at 96. The prosecutor then
must justify the exclusion. Id. See generally FED. R. CRIM. P. 24(b), (c).
70. A fair cross section requires that juries "must be drawn from a source
fairly representative of the community." Taylor v. Louisiana, 419 U.S. 522, 538
538
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[Vol. 31
ful and the petitioner was convicted. 7 The district court reviewed the case on a petition for a writ of habeas corpus and
dismissed it. Petitioner appealed. The court of appeals decided
to rehear the case for reasons not relevant to this discussion,
but ultimately dismissed all three claims raised by the petitioner, holding that the fair cross-section requirement applied only
in the context of jury venire 72 and did not extend to the jury
7
itself.
B.
The Supreme Court Decision
Teague presented three claims to the Supreme Court, two
of which were resolved by majority rulings.7 ' Teague's third
claim asserted that the sixth amendment right to a fair
cross-section of jury venire should apply to the petit jury.75
The ruling on this issue was by plurality opinion and is the
focus of this discussion.
Writing for the plurality, Justice O'Connor first emphasized that the issue of retroactivity is a threshold inquiry.76
Second, Justice O'Connor characterized petitioner's fair
cross-section claim as a "new rule." 77 She noted that whether
a rule should be characterized as "new" for retroactivity purposes was a difficult determination. 7" Notably, she declined to
(1975).
71. The Illinois Supreme Court denied leave to appeal and the United States
Supreme Court denied certiorari. Teague v. Lane, 489 U.S. 288, 293 (1989).
72. Jury venire refers to the group of'jurors summoned as compared to those
actually selected to serve. BLACK'S LAW DICTIONARY 1556 (6th ed. 1979).
73. Teague v. Lane, 489 U.S. 288, 294 (1989).
74. Petitioner's first claim was that he was entitled to retroactive application
of Batson v. Kentucky, 476 U.S. 79 (1986). See supra note 69. The majority held
that Teague could not benefit from Batson because of Allen v. Hardy, 478 U.S.
255 (1986), which held Batson could not be applied retroactively on collateral review. Petitioner's second claim asserted that he had met the requirements needed
to establish that the prosecutor's use of peremptory challenges constituted a violation of the equal protection clause. See Swain v. Alabama, 380 U.S. 202, 208
(1965). The majority concluded that Teague was procedurally barred from raising
the claim on habeas review. Teague, 489 U.S. at 298.
75. A petit jury refers to an ordinary jury used for a criminal or ckil case; it
is referred to as such in order to distinguish it from a grand jury. BLACK'S LAW
DICTIONARY 856 (6th ed. 1990).
76. Teague, 489 U.S. at 300. See Bowen v. United States, 422 U.S. 916, 920
(1975); Mishkin, Foreword: The High Court, the Great Writ, and the Due Process of
Time and Law, 79 HARV. L. REv. 56, 64 (1965).
77. Teague, 489 U.S. 288, 301.
78. Id.
1991]
ANALYSIS OF TEAGUE V. LANE
specify a "spectrum" of what could be treated as a new rule,
but generally held that a case announces a new rule when it
"breaks new ground" or creates a new burden which is imposed upon the states or federal government. 79 The Court
further held that a case announces a new rule "if the result was
not dictated by precedent existing at the time the defendant's
conviction became final."8 0
Finding that the petitioner's claim constituted a new rule,
the Court returned to the Linkletter retroactivity doctrine and
proceeded to overrule it. O'Connor noted that the first half of
Harlan's retroactivity scheme, retroactivity on direct review,
had become the definitive approach."' Moving toward an
adoption of the second half of Harlan's scheme (retroactivity
on collateral review), the Court began by expressing its dissatisfaction with Linkletter. Of Linkletter's noted failings, the Court
believed the worst was the disparity of treatment among defendants seeking collateral review. 2 The Court set forth Harlan's
alternative for retroactivity on habeas review, including
Harlan's evaluation of the nature, function, and scope of habeas." Justice O'Connor placed special emphasis on Harlan's
response to the argument that retroactive application provides
an incentive to "toe the constitutional mark." 4
The plurality opinion then broadly discussed habeas review and related current policies and interests. Justice
O'Connor contended that the Supreme Court has never based
79. Id.
80. Id. See generally Truesdale v. Aiken, 480 U.S. 527, 528-29 (1987) (Powell,
J., dissenting)."
81. Harlan's approach to retroactivity on direct review became the majority
view in Griffin v. Kentucky, 479 U.S. 314 (1987). "Failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic
norms of constitutional adjudication." Id. at 322.
82. Teague v. Lane, 489 U.S. 288, 305 (1989). The Court cited Edwards v.
Arizona, 451 U.S. 477 (1981) (ruling that when a suspect asserted his right to
counsel, he could not waive that right until counsel had been made available, un-
less the suspect initiated further communications), as an example of the disparity
of treatment that existed.
83. Teague, 489 U.S. at 306. See supra notes 49-51 and accompanying text.
84. Teague, 489 U.S. at 307 (quoting Solem v. Stumes, 465 U.S. 638, 653
(1984) (Powell. J., concurring)). Harlan's response to this argument was "[iun order
to perform this deterrence function, the habeas court need only apply the constitutional standards that prevailed at the time the original proceedings took place."
Desist v. United States, 394 U.S. 244, 263 (1969). See supra text accompanying
note 52.
SANTA CLARA LAW REVIEW
[Vol. 31
the scope of habeas review singularly on the need to ensure
that criminal trials were free from constitutional errors.8 5 Furthermore, the plurality believed the interest of finality must be
given its proper weight86 and noted the monetary costs states
87
incur in permitting retroactive application on habeas review.
Finally, the opinion recognized the frustration experienced by
state courts whose decisions are overturned on habeas review
despite correct application of existing law. 8 For these reasons, the plurality adopted'Harlan's approach to retroactivity
established under the jurisdiction of habeas corfor new rules
9
pus review.8
The Court went on to apply its holding to Teague's fair
cross-section claim. It had already been determined that
Teague's claim was within the definition of a new rule; 90 what
remained was a determination as to whether the rule fell within either of Harlan's two exceptions.9 ' The plurality quickly
dispensed with the first exception: it reasoned that the a new
rule which places "certain kinds of primary, private individual
conduct beyond the power of the criminal law-making authority to proscribe" 2 had no relevance to Teague's fair
93
cross-section claim.
Harlan's second exception was given lengthier consideration. 4 As a preliminary matter, the plurality found the sec-
85. Kuhlman v. Wilson, 477 U.S. 436, 447 (1986) (plurality opinion).
a criminal judgment is ever to become final,
86. Teague, 489 U.S. at 308. "[I]f
the notion of legality must at some point include the assignment of final competence to determine legality." Id. (quoting Bator, Finality in Criminal Law and
Federal Habeas Cospus for State Prisoners, 76 HARV. L. REV. 441, 450-51 (1963)).
87. According to the Court, permitting retroactive application of decisions
announced after habeas petitioners' own convictions are final "continually forces
the State to marshal resources in order to keep in prison defendants whose trials
and appeals conformed to then-existing constitutional standards." Teague, 489 U.S.
at 310. It is interesting to note the above complaint in the context of arguments
for and against the death penalty. Opponents of capital punishment often argue
the expense involved in carrying out death sentences. It is probably fair to say
that proponents of the death penalty would like to see the eliiiiation of this
argument.
88. Id.
89. Id.
90. See supra text accompanying note 77.
91. Teague v. Lane, 489 U.S. 288, 311 (1989).
92. Id. (quoting Mackey v. United States, 401 U.S. 667, 692 (1971)).
93. Id.
94. Harlan's second exception provided for a rule which calls for the observance of "those procedures that . . . are 'implicit in the concept of ordered
ANALYSIS OF TEAGUE V. LANE
1991]
ond exception in need of modification. O'Connor traced the
development of the second exception, noting that in Harlan's
concurrence in Mackey v. United States,95 he was compelled to
broaden the exception under Palko v. Connecticut." Reasoning
that conformance to Palko today "would be unnecessarily
anachronistic, " " O'Connor concluded that the second exception should be limited to "those new procedures without which
the likelihood of an accurate conviction is seriously diminished." 8 Significantly, the plurality opinion added that it was
"unlikely that many such components of basic due process
99
have yet to emerge."
The Court concluded that a new procedural rule calling
for petit juries to represent a fair cross-section of the community was a "far cry from the kind of absolute prerequisite to
fundamental fairness" which the modified second exception
would require.'0 0 Stated alternatively, the rule did not constitute the type of "bedrock procedural element" which would
qualify it for retroactive application on collateral review.'
Because the retroactivity analysis was a threshold inquiry, the
Court declared itself unable to reach the fair cross-section
claim on its merits. 0 2 Justice Brennan was joined by Justice
Marshall in a vigorous dissent.
C. Justice Brennan's Dissenting Opinion: Concern for the Great
Writ
Justice Brennan severely criticized the adoption of a new
standard for retroactivity. He found no precedential support
liberty.'"
95.
96.
97.
98.
99.
100.
Id. (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)).
Mackey, 401 U.S. at 692.
302 U.S. 319, 325 (1937). See supra note 62 and accompanying text.
Teague v. Lane, 489 U.S. 288, 312 (1989).
Id. at 313.
Id.
Id. Justice
O'Connor
reached
this conclusion by examining Taylor
v.
Louisiana, 419 U.S. 522 (1975). See supra note 70.
101. Teague, 489 U.S. at 315.
102. At this point in the decision, the Court speaks of equitable treatment of
similarly situated defendants. Due to its concern for equitable treatment, the
Court refuses to allow advisory opinions based on the merits of an asserted new
rule. According to the Court, there is a "more principled way of dealing with tile
problem [of inequitable treatment. The Court] can simply refuse to announce a
new rule in a given case unless the rule would be applied retroactively to the
defendant in the case and to all others similarly situated." Id. at 316.
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[Vol. 31
0
for the decision in the Federal Habeas Corpus Statute.1 3
Furthermore, he noted that Congress had made no attempt to
narrow the scope of habeas corpus since the enactment of the
Habeas Corpus Act of 1867.104 Justice Brennan objected to
the plurality's adoption of a new approach to habeas review
without receiving significant briefing on the subject"0 " and
without the benefit of oral arguments.'0 °
Justice Brennan saw the action by the court as a radical
change in the scope and strength of the "Great Writ." The
broad definition of a new rule and the narrow definitions of
the two exceptions effectively limited the Court's power of
adjudication through the means of habeas review.0 7 To illustrate this point, he cited a number of cases which never would
08
have been adjudicated under the plurality's holding.'
103. A district court "shall entertain an application for a writ of habeas corpus
on behalf of a person in custody pursuant to the judgment of a State court only
on the ground that he is.in custody in violation of the Constitution or laws or
treaties of the United States." 28 U.S.C. § 2254(a) (1982).
104. Teague v. Lane, 489 U.S. 288, 327-28 (1989) (Brennan, J., dissenting).
105. Brief for Criminal Justice Legal Foundation as Amicus Curiae, Teague, .489
U.S. at 288.
106. In support of his complaint, Justice Brennan quoted the following statement made by Justice Harlan: The Supreme Court's "obligation of orderly adherence to [its] own processes would demand that fit] seek that aid which adequate briefing and argument lends to the determination of an important issue."
Mapp v. Ohio, 367 U.S. 643, 677 (1961) (Harlan, J., dissenting). "The question of
scope of collateral attack upon criminal sentences is an important one . . . . We
think that we should have the benefit of a full argument before dealing with the
question." Ladner v. United States, 358 U.S. 169, 173 (1958).
107. Teague, 489 U.S at 327 (Brennan, J., dissenting).
108. Among the cases that Brennan cited were the following: Nix v. Whiteside,
475 U.S. 157 (1986) (holding a breach of an ethical standard does not necessarily
constitute ineffective assistance of counsel, however, compliance with ethical standards is automatically reasonable conduct within the reasonableness inquiry of
effective assistance of counsel); Moran v. Burbine, 475 U.S. 412 (1986) (holding
that a knowing waiver of the right to counsel does not require informing the
defendant that a lawyer has been retained for him); McKaskle v. Wiggins, 465
U.S. 168 (1984) (providing a two-pronged test for establishing whether participation of standby counsel in trial proceedings violates a defendant's right to self
representation); Morris v. Slappy, 461 U.S. 1 (1983) (rejecting an appellate court's
holding that a defendant has a right to a meaningful attorney-client relationship);
Wainwright v. Torna, 455 U.S. 586 (1982) (no right to effective assistance of
counsel on discretionary appeal); Ross v. Moffitt, 417 U.S. 600 (1974) (under the
right to counsel, equal protection only goes as far as providing meaningful access
to appellate review); Tehan v. United States ex reL Shou, 382 U.S. 406 (1966)
(evidence used to establish defendant's guilt must be independently and freely
secured); Estelle v. Smith, 451 U.S 454 (1981) (psychiatric testimony used to
establish competence to stand trial and future dangerousness during the sentenc-
1991]
ANALYSIS OF TEAGUE V. LANE
543
Brennan contrasted the plurality's interest in uniform treatment of habeas petitioners against the practical reality that
collateral review may be the only vehicle by which an issue can
reach the Court. He concluded that the "uniform treatment of
is not worth the price the plurality is willing
habeas petitioners
09
to pay.'
Finally, Justice Brennan criticized what he saw as the
plurality's inaccurate account of the substance of the
petitioner's claim," 0 suggesting that a slight rephrasing of an
issue can have drastic effects on the proposed threshold inquiry. In addition to Justice Brennan's concerns, Justice Stevens
expressed his own concerns regarding the application of
Teague v. Lane to subsequent capital cases."' His concerns
were addressed in Penry v. Lynaugh." 2 Two circuit courts
ing phase violated defendant's fifth and sixth amendment rights because he had
not received Miranda warnings or assistance of counsel); Fletcher v. Weir, 455
U.S. 603 (1982) (holding post- irrest silence, even before Miranda warnings were
given, could be used to impeach a claim of self defense); Jenkins v. Anderson,
447 U.S. 231 (1980) (failure of defendant to turn himself in can be used to impeach a self-defense claim).
109. Teague, 489 U.S. at 339.
110. Justice Brennan compared the plurality's version of Teague's contention,
"that petit juries actually chosen must mirror the community and reflect the
various distinctive groups in the population," with what was alleged in petitioner's
brief: "the Sixth Amendment guarantees the accused a jury selected in accordance
with the procedures that allow a fair possibility for the jury to reflect a cross
section of the community." Id. at 341. He made this comparison for the sake of
illustrating the dangers of a threshold inquiry which dictates whether the Court
can proceed on the merits. If the claim is initially characterized improperly, the
claim may be wrongly denied.
Justice Powell, known to echo Harlan's view on the subject of retroactivity,
stated "[w]henever the fairness of the petit jury is brought into question doubts
are raised as to the integrity of the process that found the prisoner guilty. Collateral relief therefore may be justified even though it entails some damage to the
federal fabric." Rose v. Mitchell, 443 U.S. 545, 584 (1979).
111. Teague v. Lane, 489 U.S. 288, 321 n.3 (1989) (Stevens, J., concurring).
Justice Stevens' concurrence in Teague raised the issue of whether Teague's principles should be applied in the context of capital sentencing. Id.
112. Penry v. Lynaugh, 492 U.S. 302, --- (1989) (the question was summarily
answered in the affirmative: the concerns of finality which prompted Teague were
equally present in capital cases).
In Penry, two questions were presented to the Supreme Court. The first
involved the jury instructions provided during the sentencing phase of Penry's
trial. Penry asserted his sentence violated the eighth amendment because the jury
was not instructed effectively to enable full consideration of the weight of Penry's
The Supreme Court
mitigating circumstances submitted as evidence. Id. at _.
determined that the rule sought by Penry on this issue was not a new rule for
the purposes of Teague, and thus, the Court was able to adjudicate the issue on
SANTA CLARA LAW REVIEW
[Vol. 31
have addressed Teague in another procedural context: unfair
prosecutorial remarks.'"
IV.
FURTHER "REFINING" OF THE "NEw RULE": WHERE
REASONABLE MINDS CAN DIFFER
After Teague was announced and subsequently clarified in
Penry v. Lynaugh, discord developed among lower courts concerning the proper application of Teague."4 Particularly trou-
the merits. The second issue in Penty posed the question of whether it was cruel
and unusual punishment, explicitly prohibited by the eighth amendment, to execute a person of Penry's mental capacity (at trial Penry was proven moderately
retarded with a mental age of approximately six-and-a-half years old). Id. at __.
Petitioner argued that the eighth amendment prohibited the execution of a person
inflicted with his level of mental retardation. The Court found this to be a new
rule under Teague's definition because it was not "dictated" by existing precedent
and because it would "brea[k] new ground [and] impos[e] a new obligation on the
States or the Federal Government." Teague, 489 U.S. at 301.
The Court held that the new rule in question fell within the first exception
to the general rule. Justice O'Connor found a new rule "placing a certain class of
individuals beyond the State's power to punish by death" sufficiently analogous to
"certain kinds of primary, private individual conduct beyond the power of the
criminal law-making authority to proscribe.'" Pemy, 492 U.S. at - (quoting
Teague, 489 U.S. at 307). Thus, Penry was entitled to a Supreme Court ruling on
.
the issue. Id. at
113. See infra note 114.
114. The Fifth Circuit in Sawyer v. Butler, 881 F.2d 1273 (5th Cir. 1989), and
the Tenth Circuit in Hopkinson v. Shillinger, 888 F.2d 1286 (10th Cir. 1989),
analyzed and applied Teague in two very similar situations. Each case involved
remarks made by the prosecutors. Both petitioners, before the court on writ of
habeas corpus, alleged that remarks made during his sentencing proceeding
amounted to a violation of Caldwell v. Mississippi, 472 U.S. 320 (1985). (Caldwell
held that "lilt is constitutionally impermissible to rest a death sentence on a
determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Caldwek 472 U.S. at 329.) The petitioners' convictions became final before
Caldwell was announced, and, thus, the question of whether the petitioners could
benefit from Caldwells holding involved retroactive application and tile holding of
Teague v. Lane. (Sawyer was denied certiorari in 1984. See Sawyer v. Louisiana,
466 U.S. 931 (1984). Hopkinson was denied certiorari in 1983. See lopkinson v.
State, 464 U.S. 908 (1983)).
The two circuit courts varied in their treatment of Teague as they applied it
to the question before them. The Fifth Circuit found fault with the threshold
inquiry required by the Teague plurality. Both courts recognized the ambiguity of
a "new rule," but differed in their methods for determining whether Caldwell was
a new rule. Finally, the two courts arrived at opposite conclusions as to whether
Caldwell qualified as an exception to Teague.
1991]
blesome
ANALYSIS OF TEAGUE V. LANE
was the definition of a new rule.
15
545
In Butler v.
The facts of Sawyer are as follows: on September 19, 1980, Robert Sawyer
was sentenced to death for the brutal killing of Frances Arwood. Sawyer, 881 F.2d
at 1275. He petitioned the district court for a writ of habeas corpus and was denied. Id. He came before the Fifth Circuit on appeal. The argument raised by
Sawyer, that is relevant to this discussion, is that the prosecutor misled the jury in
his closing arguments- during the sentencing phase of the trial and, in doing so,
the prosecutor diminished the jury's role in sentencing petitioner to death.
The factual background. of Hopkinson v. Shillinger is as follows: Mark A.
Hopkinson was convicted on four counts of first degree murder and two counts
of conspiracy to commit murder. Hopkinson, 888 F.2d at 1287. He was sentenced
to death. Id. The death sentence was vacated by the Wyoming Supreme Court. In
a second sentencing proceeding he was again sentenced to death, and the sentence was affirmed by the supreme court. Id. Hopkinson sought federal habeas
relief after challenges to the state court proved unsuccessful. His petition for writ
of habeas corpus was denied by the district court. The Tenth Circuit affirmed on
practically every issue, however it agreed to consider the issues concerning remarks made by the prosecutor in the second sentencing proceeding. Id.
In Sawyer, the Fifth Circuit did not agree with the Supreme Court in that
retroactivity should be a threshold inquiry. Of course, the Fifth Circuit did not
explicitly disregard the plurality's requirement that retroactivity be a threshold
matter. The court simply stated that it "remains unclear . . . whether Teague
necessarily operates as a threshold barrier preempting full analysis of the constitutional claim asserted." Sawyer, 881 F.2d at 1280. The court's concern was based on
the question of whether a petitioner correctly formulated the rule of which he
sought the benefit.
In applying the Teague analysis, the court believed that it was possible to
employ a rule as alleged by petitioner without first assessing its correctness.
However, the court felt that following this approach would "do nothing to clarify
the substantive law, and defeat rather than serve judicial economy." Sawyer, 881
F.2d at 1281. The Fifth Circuit noted that "a court may have to reach the constitutional questions even to define what the petitioner complains of." Id. To
strengthen its position on the subject, the Fifth Circuit cited Pemy, 492 U.S. at
__
where Justice O'Connor determined the precise substantive question in order
to determine whether the decision was dictated by precedent. Sawyer, 881 F.2d at
1281. Accordingly, the Fifth Circuit chose to evaluate the correctness of the
petitioner's statement of Caldwell before addressing retroactivity. Sawye; 881 F.2d
at 1281.
Both Sawyer and Hopkinson referred to the language of Teague to clarify the
meaning of a new rule. "[A] -case 'announces a new rule when it breaks new
ground or imposes a new obligation on the State or Federal Government, [or,] to
put it differently . . . if the result was not dictated by precedent.'" Sawyer, 881
F.2d at 1287 (quoting Teague v. Lane, 489 U.S. 288, 301 (1989)). Virtually, the
same language is quoted in Hopkinson, 888 F.2d at 1288.
The courts also looked elsewhere, beyond Teague's language, to determine
whether Caldwell should be characterized as a new rule. The Tenth Circuit had
recently identified Caldwell as a new rule in a procedural default case. Dutton v.
Brown, 812 F.2d 593 (10th Cir. 1987). The Tenth Circuit had concluded in Dutton
v. BrowU that there was cause for a procedural default in 1979, because the defaulting party could not have known the holding in Caldwell until it was announced. "The law petitioner relies on did not become established until the
Caldwell decision in 1985." Hopkinson, 888 F.2d at 1289 (quoting Dutton, 812 F.2d
SANTA CLARA LAW REVIEW
[Vol. 31
at 596). The Hopkinson court found this holding sufficiently analogous to the
context of retroactivity and, therefore, concluded that Caldwell was a new rule.
The Fifth Circuit used a different route to arrive at the same conclusion,
i.e., that Caldwell constituted a new rule. The Fifth Circuit first distinguished a
post-Caldwell decision (Busby v. Butler, 538 So. 2d 164 (La. 1988)) which held that
in
Caldwell had not altered previous case law. It dismissed the statement made
being
as
law"
case
previous
.
.
.
change
not
"did
Caldwell
that
Butler
v.
Busby
164,
coincidental. Sawyer, 881 F.2d at 1291 (quoting Busby v. Butler, 538 So. 2d
that
held
which
decision
a
distinguished
further
court
Sawyer
The
1988)).
173 (La.
v.
a Caldwell argument was not "new" for purposes of writ abuse. Moore
The
(1986).
1176
U.S.
476
denied,
cen.
1985),
Cir.
(5th
97
F.2d
774
Blackburn,
from
Fifth Circuit believed that the meaniig of "newness" differs in writ abuse
habeas
of
writ
a
of
abuse
an
(If
1291.
at
F.2d
881
Sawyer,
that of retroactivity.
corpus can be established, the petition may be dismissed. Price v. Johnston, 334
Id. at
U.S. 266 (1948). It is the burden of the government to establish an abuse.
291-92. If the allegation is valid, then the petitioner bears the burden of establishing that he has not abused the writ. Id.)
The Fifth Circuit held that Caldwell was a new rule because it broke new
ground. The "new ground" was the "heightened intolerance" of jury deception
that Caldwell provided. Sawyer, 881 F.2d at 1291.
Once established by both circuit courts that a Caldwell claim was a new
rule, the courts needed to ascertain if the claim fell within one of the two exceptions provided by Teague. Both courts were in agreement that the petitioners'
claims did not qualify under the first exception, because constitutionally protected
conduct was not involved. "Sawyer . . . cannot contend that the sentence imposed
upon him was unlawful because the conduct for which he was charged was constitutionally privileged, or that he is among a class of persons protected against
to
execution." Sawyer, 881 F.2d at 1291. "The first exception in Tengue relates
prohibrules
and
conduct
primary
certain
of
punishment
rules forbidding criminal
iting a certain category of punishment for a class of defendants because of their
status or offense . . . . That exception does not apply." Hopkinson, 888 F.2d at
dif1291. However, as to the second exception, the opinions of the two courts
profTeague
felt
it
direction
the
from
depart
to
fered. The Tenth Circuit chose
fered and characterize petitioner's Caldwell claim as the type of bedrock procedure
inherent in fundamental fairness. Id. at 1292. The Tenth Circuit stated, "[w]hile
we acknowledge Teague's severe constraints on the scope of collateral review, we
conclude that Caldwell claims fall within the second exception in Teagle, regardless
of how the exception may finally be defined." Id. The claim, therefore, qualified
as an exception and was entitled to review based upon the merits.
In contrast, the Fifth Circuit concluded that petitioner's Caldwvell claim did
not fall within the second exception. Sawyer, 881 F.2d at 1293. The court saw
Caldwell's "heightened intolerance" of jury deception as being beyond bedrock
procedure. The Sawyer court noted that those who are forced to seek the benefit
of Caldwela rather than relying on the state of the law before Caldwell, "are those
so
who must concede that the prosecutorial argument in their case was not
other
In
Id.
unfair.'"
"findamentally
trial
sentencing
their
render
to
harmful as
words, if petitioner could establish that his sentencing trial was fundamentally
unfair he would not need to seek retroactive application of Caldwel4 but could
637
use the law prior to CaldwelL See genetally Donelly v. DeChristorforo, 416 U.S.
cona
constitute
will
argument
prosecutorial
prejudicial
a
that
(holding
(1974)
stitutional violation only if the argument is so unfair as to amount to a violation
a
of due process). The Fifth Circuit held that since petitioner's Caldwell claim was
1991]
ANALYSIS OF TEAGUE V. LANE
547
McKellar,16 the issue came before the Supreme Court.
Horace Butler was sentenced to death after a jury convicted him of murder. 1 7 In his petition for federal habeas corpus, Butler argued that it was impermissible for the police to
question the petitioner about the murder knowing that he had
retained an attorney for unrelated charges."8 His petition
was dismissed by the district court, and Butler appealed." 9
Butler contended that Edwards v. Arizona, 2 ' as interpreted by
Espinoza v. Fairman,' mandated preclusion of his statements. The Fourth Circuit did not agree and affirmed the dismissal of the habeas petition. The court believed that an interrogation based upon a completely different charge did not
constitute a violation of any constitutional right guaranteed by
the fifth amendment.
22
Butler filed petitions for rehearing; on the same day that
they were denied, the. Supreme Court announced Arizona v.
Roberson.123 Roberson held "that the Fifth Amendment bars
police-initiated interrogation following a suspect's request for
counsel in the context of a separate investigation." 2 1 Butler
requested reconsideration in light of Roberson. A panel for the
new rule not qualifying under either exception, the court, under Teague, was
obligated to deny the writ. Sawyer. 881 F.2d at 1295.
115. Supra note 110.
116. 110 S. Ct. 1212 (1990).
117. Id. at 1214.
118. Id. Butler had invoked his right to an attorney pursuant to the fifth
amendment after being arrested for an unrelated assault and battery. Id. After his
bond hearing, Butler was returned to jail. Later, he was taken from jail and
informed that he was a murder suspect. Id. Butler submitted to interrogation
about the murder after receiving Miranda warnings and signing two waivers. Id. At
trial, the statements Butler made during this interrogation were submitted into
evidence, despite Butler's attempted motion to suppress. Id.
119. Butler v. Aiken, 846 F.2d 255 (4th Cir. 1988).
120. 451 U.S. 477 (1981). Edwards v. Arizona held "that an accused . . having
expressed his desire to deal with the police only through counsel, is not subject
to further interrogation by the authorities until counsel has been made available
to him, unless the accused himself initiates further communication, exchanges, or
conversations with the police." Id. at 484-85.
121. 813 F.2d 117 (7th Cir. 1987). The court held that when Espinoza invoked
his right to counsel under the fifth amendment, the right extended to "any interrogation, concerning any crime, that the police or prosecutors conducted while he
remained in continuous physical custody." Id. at 126.
122. Butler, 846 F.2d at 258.
123. 486 U.S. 675 (1988).
124. Butler v. McKellar, 110 S. Ct. 1212, 1216 (1990) (citing Roberson, 486 U.S.
at 682).
548
SANTA CLARA LAW REVIEW
[Vol. 31
Fourth Circuit found that the Roberson holding clarified the
"prophylactic protections" provided by the fifth amendment
and also revised the "guidelines" for the police interrogation.
However, the panel did not see the decision as necessitating a
reversal of Butler's conviction, given that the procedures used
in questioning Butler were in line with the proper procedure
of the day.
Butler appealed to the Supreme Court arguing that
Roberson was not a new rule because Roberson had been con25
trolled by Edwards v. Arizona.' Butler's argument was supported by evidence that the Roberson Court believed that
Roberson's situation was "directly controlled by" and within
26
the "logical compass" of Edwards.'
In writing the opinion, Chief Justice Rehnquist clarified
the defintion of a new rule. He began by stating the general
127
and
proscription as set forth in both Peny v. Lynaugh
128
cases,
noncapital
and
capital
to
applied
as
Teague v. Lane:
new rules should not be applied or announced in cases on
habeas review unless they fall under one of two exceptions. "' Again citing Penry and Teague, Rehnquist stated that
a new rule is announced "when it breaks new ground or imposes a new obligation on the states or the Federal Government. " 3° Restated, a new rule is announced "if the result
was not dictated by precedent existing at the time the
3
defendant's conviction became final."' ' He suggested that
where a case has expressly overruled prior case law, the determajority of casmination is a simple one. However, in the vast
2
simple.s
as
es the determination will not be
125. 451 U.S. 477 (1981), which "requires the police, diring continuous custody, to refrain from all further questioning once an accused invokes his right to
counsel on any offense." It should be noted that Butler's conviction became final
in 1982 (when the Supreme Court denied certiorari). Id., cel. denied, 459 U.S. 932
(1982). Therefore, Butler was entitled to the benefit of Edwanis which was decided
in 1981.
126.
Butler, 110 S. Ct. at 1217. Evidence consisted of briefs and oral argu-
ments with which the Court apparently agreed. Id.
127. 492 U.S. 302 (1989).
128. 489 U.S. 288 (1989).
129. Butler, 110 S. Ct. at 1216.
130. Id. (citing Penry v. Lynaugh, 492 U.S. at ___).
131. Id. (citing Teague, 489 U.S. at 301).
132. Id. It must be noted that this language signals an expansion of what
constitutes a new rule. In Teague v. Lane, Justice O'Connor defined a new rule as
1991]
ANALYSIS OF TEAGUE V. LANE
549
Immediately following his statement of the definition of a
new rule, Rehnquist shifted to a policy discussion; he asserted
that "the relevant frame of reference" was the underlying purpose of habeas corpus and not the particular purpose of the
rule defendant seeks to apply. "Given the 'broad scope of constitutional issues cognizable on habeas' . . . it is 'sounder ... to
apply the law prevailing at the time a conviction became final
than.., on the basis of intervening changes in constitutional
interpretation. ' " ss Justice Rehnquist then commented on the
intrusive nature of applying new rules retroactively, referring
to the frustrations of state courts when reversed after correctly
applying then-existing constitutional law.' 4 Rehnquist concluded that "[t]he 'new rule' principle therefore validates reasonable good-faith interpretations of existing precedents made
by state courts even though they are shown to be contrary to
35
later decisions."
being the case announcement that "breaks new ground or imposes a new obligation." 489 U.S. at 301. Given this language, it appeared safe to assume that the
cases expressly overruling prior case law would be the majority of cases falling
within the definition. However, Justice Rehnquist seems to be suggesting that
many cases that do not explicitly overrule prior case law will be subject to the
.new rule" inquiry and likely will be found to be new rules, thus precluding their
retroactive application.
133. Butler, 110 S. Ct. at 1216. "[T]he threat of habeas serves as a necessary
additional incentive for trial and appellate courts throughout the land to conduct
their proceedings in a manner consistent with established constitutional standards."
Id. at 1217 (quoting Teague, 489 U.S. at 306-07).
134. Id. (quoting Teague, 489 U.S. at 310). Rehnquist also made reference to
Brown v. Allen, 344 U.S. 443, 534 (1953) (Jackson, J., concurring): "state courts
cannot 'anticipate, and so comply with, this Court's due process requirements or
ascertain any standards to which this Court will adhere in prescribing them.'"
Butler, 110 S. Ct. at 1217 (quoting Teague, 489 U.S. at 310).
135. Id. (citing United States v. Leon, 468 U.S. 897, 918-919 (1984)). Leon heldthat the fourth amendment should not require an exclusion of a prosecutor's
case-in-chief evidence "obtained by officers acting in reasonable reliance on a
search warrant issued by a detached and neutral magistrate but ultimately found
to be unsupported by probable cause." Leon, 468 U.S. at 900. The reasoning of
the Leon decision can be broken down in to four parts: (1) because the
exclusionary rule is a "judicially created remedy," whether or not it is applied
'must be resolved by weighing the costs and benefits of preventing the use" of
illegally seized evidence, Id. at 906-07; (2) there is no substance to the belief that
excluding "evidence seized pursuant to a warrant will have a significant deterrent
effect on the issuing judge or magistrate," furthermore, "there exists no evidence
suggesting that judges and magistrates are inclined to ignore or subvert the
Fourth Amendment," Id. at 916; (3) when a warrant has been legally obtained by
a police officer, excluding the evidence because unsupported by probable cause is
inappropriate to the deterrence of subsequent illegal police conduct, Id. at 918-19;
550
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[Vol. 31
Addressing Butler's specific arguments, Justice Rehnquist
concluded that a court's statement that a case is "controlled"
by or within the "logical compass" of an earlier decision "is not
conclusive for purposes of deciding whether the current decision is a 'new rule' under Teague." Justice Rehnquist reasoned
that because a court could conclude that the Edwards rule
should not extend to the particular circumstances of Roberson
and that in so finding the court would not be applying Edwards
"illogical[ly]" or "grudging[ly]," Roberson announced a new
rule." 6 His conclusion was further supported by the fact that
Roberson "was susceptible to debate among reasonable
minds.""3 7 Rehnquist quickly dispensed with the two excepnew rule doctrine, holding that neither one was
tions to the
13 8
applicable.
He directed his most disJustice Brennan dissented.'
paraging remarks at the majority's "thinly veiled crusade to
4
eviscerate Congress' habeas corpus regime." ' Additionally,
he criticized individual aspects of the majority opinion.
Brennan pointed out that in Roberson the prosecution sought
an exception to the general rule in Edwards. The exception
would have involved interrogation on a subject unrelated to
previously interrogated subject-matter. The Court rejected the
proposed exception. 4 ' According to Brennan, Roberson "simply applied the legal principle established in Miranda and reconfirmed in Edwards to a set of facts that was not dissimilar in
any salient way. 1
(4) "the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion," d. at 922.
136. Butler, 110 S. Ct. at 1217-18.
137. Id. at 1217.
138. Id. at 1218.
139. Id. at 1218-27.
140. Butler, 110 S. Ct. at 1219. "Today, under the guise of fine-tuning tile
definition of a 'new rule,' the Court strips state prisoners of virtually any meaningful federal review of the constitutionality of their incarceration."
141. Id. at 1220 (referring to Arizona v. Roberson, 486 U.S. 675 (1988)).
142. Id. Brennan's statement alludes to the somewhat complicated issue of
whether the issue of retroactivity has even arisen. "When a decision of this Court
merely has applied settle precedents to new and different factual situations, no
real question [of retroactivity] has arisen . . . . In such cases, it has been a foregone conclusion that the rule of the later case applies in earlier cases, because the
later decision has not in fact altered that rule in any material way." Id. at 1223
(quoting United States v. Johnson, 457 U.S. 537, 549 (1982)). What Justice
1991]
ANALYSIS OF TEAGUE V. LANE
551
Justice Brennan further asserted that even Justice Harlan
would not conclude that Roberson constituted a new rule "unless he could 'say with assurance that this Court would have
ruled differently' (i.e., in the State's favor) at the time Butler's
conviction became final."' 43 Brennan concluded that the
Court currently "embraces the opposite presumption; [a rule is
'new' when the Court] cannot say with assurance that Court
could not have ruled in favor of the State at that time."'
Justice Brennan refered to the established principle that
Congress defines the scope of federal habeas review. 4
Doubting that state courts could be fully responsive and sympathetic to federal constitutional claims, Congress established
federal habeas corpus review.' 46 The threat of habeas corpus,
in the words of Justice Harlan, encourages courts to "toe the
constitutional mark."' 4 7 Justice Brennan contended that a system which establishes extreme deference to state court rulings
.severely undermines the intent of Congress. 4 '
V.
ANALYSIS
Much of this comment has focused on the historical background of Teague. As mentioned above, Justice Harlan's retroactivity scheme, as enunciated in Mackey and Desist, constitutes
the entire theoretical foundation of the Teague decision. His
Brennan may be suggesting is that an overly broad characterization of what is a
.new rule," artificially implicates the retroactivity issue altogether and, thus, extends Teague's application even further.
143. Butler v. McKellar, 110 S. Ct. 1212, 1223 (quoting Desist v. United States,
394 U.S. 244, 264 (1969) (Harlan, J., dissenting).
144. Id. at 1223-24. In regard to Justice Harlan's role as "chief proponent" of
the majority's approach, Justice Brennan commented that the Court has failed to
adhere to Harlan's views.
145. Butler, 110 S. Ct. at 1226. "It is Congress and not this Court who is
'responsible for defining the scope of the writ.'" Id. "'Congress could have left the
enforcement of federal constitutional rights . ..exclusively to the State courts.'"
Id. at 1226 n.13 (quoting Brown v. Allen, 344 U.S. 443, 499 (1953)). "'[But congress] has seen fit to give ... to the lower federal courts power to inquire into
federal claims, by way of habeas corpus .
M...'"
Id.
(quoting Brown v. Allen, 344
U.S. 443, 508-10 (1953)).
146. Id. at 1224.
147. Mackey v. United States, 401 U.S. 667, 687 (1971).
148. Butler 110 S. Ct. at 1224. "'The congressional requirement is [that the]
State court cannot have the last say when it, though on fair consideration and
what procedurally may be deemed fairness, may have misconceived a federal
constitutional right.'" Id. (quoting Brown, 344 U.S. at 508).
SANTA CLARA LAW REVIEW
[Vol. 31
analysis and, to some extent, his reputation are used to justify
the Teague decision. Thus, in order to determine if the present
Court has effectively implemented Harlan's views on retroactivity, the Teague holding must be compared to Harlan's rule.
Such a comparison is necessitated by the fact that the Teague
Court adopted a new approach to retroactivity with little original analysis.
Justice Harlan's opinions, in many ways, represented the
voice of caution during the reign of the Warren Court. He
repeatedly protested the expansion of the scope of habeas corpus review. He disagreed with the majority opinion in Fay v.
Noia."4 ' He saw the breadth of Fay v. Noia as a danger, and it
was the resulting expanded scope of habeas corpus which
5
prompted his retroactivity theory. ' However, little of Fay v.
5 ' The jurisdictional holding of Fay v.
Noia remains today.
Noia still stands,152 but it was not this portion of the decision
which Harlan disputed. Justice Harlan particularly objected to
the "deliberate by-pass" standard which allowed federal courts
great freedom in issuing habeas petitions. The "deliberate
by-pass" standard was rejected in 1977.' It follows that the
danger present during the period of judicial history when
Harlan developed his approach no longer exists. Today, therefore, that approach is inappropriate.
Harlan believed his treatment of retroactivity was the result of an honest and realistic balance of the competing interests involved: the interest in assuring a forum where a petitioner could test the constitutional validity of his imprisonment
and where procedural abuses could be corrected was balanced
against the need for finality in the criminal trial process.'
Necessary to this delicate balance were two exceptions, carefully designed to provide for the countervailing interests. Yet, the
plurality in Teague severely narrowed the second exception, 155 claiming adherence to it as presented by Justice
149. 372 U.S. 391 (1963). See supra note 49.
150. See supra note 48.
151. See Wainwright v. Skyes, 433 U.S. 72 (1977). See supra note 49.
152. See United States ex teL Falconer v. Lane, 720 F. Stipp. 631, 637 (N.D. Ill.
1989). See supra note 48.
153. Wainwright, 433 U.S. at 87-88.
154. Mackey v. United States, 401 U.S. 667, 680-90 (1971).
155. Teague v. Lane, 489 U.S. 288, 312-13 (1989).
1991]
ANALYSIS OF TEAGUE V. LANE
Harlan would be "unnecessarily anachronistic."15 6
Harlan's second exception embraced those procedures
"implicit in the concept of ordered liberty." 157 It is true that
the term "ordered liberty" is taken from Palko v. Connecticut 5 8 and that Palko was overruled. However, Palko had been
brought into question long before Harlan began writing his
retroactivity opinions. 159 The significance of the language was
not that it was borrowed from a case that is no longer good
law. Rather, Harlan used the Palko language in order to express his belief that an exception should lie for those procedures society recognizes as fundamental. Harlan believed that
society's perceptions are subject to change and the exception
should remain sensitive to that change. In contrast, Justice
O'Connor wrote that the second exception stood for "those
new procedures without which the likelihood of an accurate
conviction is seriously diminished"'60 and added, it is "unlikely that many such components of basic due process have yet to
emerge." 161 Thus, the second exception proscribed by Teague
does not allow for changing societal views on what constitutes
a fundamentally fair criminal trial.
A.
The Teague Threshold Inquity Requirement
The Teague plurality held that the issue of retroactivity is
to be determined as a threshold matter. A problem arises
when the rule which the habeas petitioner proposes is unclear
or poorly defined. If a habeas petitioner seeks the benefit of a
decision after his final conviction and frames his claim exactly
as the decision was announced, then the threshold inquiry is
not difficult. More likely, however, is the situation where a
petitioner seeks a subtle variation of what he perceives as the
current law. Thus, a threshold application of Teague may be
impracticable.
Furthermore, without any discussion as to what a petition-
156.
157.
(1937)).
158.
159.
160.
161.
Id. at 312.
Mackey, 401 U.S. at 693 (quoting Palko v. Connecticut, 302 U.S. 319, 325
302 U.S. 319 (1937).
See Malloy v. Hogan, 378 U.S. 1 (1964). See supra note 62.
Teague v. Lane, 489 U.S. 288, 313 (1989).
Id.
SANTA CLARA LAW REVIEW
[Vol. 31
62
er is actually claiming, the court may mislabel his claim.'
63
This danger materialized in Sawyer v. Butler and prompted
the Fifth Circuit to sidestep the threshold barrier long enough
interpretation of
to discuss the correctness of the petitioner's
64
benefit.
the rule of which he sought the
B.
The Definition of a New Rule
Justice O'Connor declined to specify what constituted a
"new rule" for purposes of retroactivity. As a result much confusion surrounded the term. It should be noted that both the
Tenth and Fifth Circuits expressed confusion as to the definition of a new rule. Seemingly armed only with the belief that
the Supreme Court meant the definition to be a broad one,
the circuit courts concluded that the petitioners' Caldwell
reasoning varclaims were in fact "new." However, the courts'
65
strained.
appeared
sometimes
and
ied widely
166
Butler v. McKellar provided subsequent clarification. Butler held that a decision will be considered a new rule if the
correctness of the rule was "susceptible to debate among reasonable minds" at the time the habeas petitioner's conviction
became final. 67 A new rule that is so defined serves two purposes: first, by declaring a rule "new" as a threshold matter,
the Court precludes any further review of a petitioner's claim;
and second, by broadly defining what constitutes a new rule,
the Court triggers the retroactivity doctrine where it might not
be otherwise implicated. Thus, many might believe that the
application of a particular, well-settled rule to a slightly varied
fact pattern does not, in and of itself, create a new rule. However, if that conclusion is "susceptible to debate among reasonable minds," the rule will be characterized as "new" and a petitioner seeking to benefit from such rule would be likely precluded from federal habeas review. Conceivably, the mere existence of majority and dissenting opinions would constitute
debate among reasonable minds and, therefore, any
non-unanimous decision would be "new."
162. See supra note 90 and accompanying text.
163. 881 F.2d 1273 (5th Cir. 1989).
164. See supra note 114.
165. See supra note 114.
166. 110 S. Ct. 1212 (1990).
167. Id. at 1217.
ANALYSIS OF TEAGUE V. LANE
1991]
555
Under the Teague framework, a petitioner may safely cite
only those cases decided before his conviction became final. If
he cites any case decided after his final conviction, his claim
may be summarily dismissed. Assuming these propositions to
be correct, the Court has effectuated a general ban on retroactive treatment of case law under habeas review.
C.
Limiting the Writ of Habeas Corpus
Only Justice Brennan in his dissent alluded to the effect of
reducing the number of cases in which the Supreme Court
might develop, redefine, and expand its rulings on the Constitution.' He described that expansion as creating missed opportunities, referring to important cases which never would
have been adjudicated under Teague.
In the face of a suggestion that the Court at least be allowed to write advisory opinions, the Court responded with
the term "equitable treatment of similarly situated defendants."" 9 It is interesting that the Court raised this argument, because it is the same argument used by those in favor
of complete retroactive treatment on habeas corpus review."17 The Court stated that the "principled way of dealing
with the problem ... [is to] refuse to announce a new rule in
a given case unless the rule would be applied retroactively to
the defendant in the case and all others similarly situated."'
The only reason a rule will not be applied retroactively is that
it was so held earlier in the same decision. This line of reasoning amounts to nothing more than boot-strapping.
Teague contains the Court's primary rationale for refusing
to issue advisory opinions: "the principle [is] thathabeas corpus cannot be used as vehicle to create new constitutional
rules of criminal procedure unless those rules would be applied retroactively to all defendants on collateral review
through one of the two exceptions ... articulated."'
This
statement suggests that habeas corpus is not to be used to develop any rules of criminal procedure. The design of the Teague
168. Teague v. Lane, 489 U.S. 288, 334 (1989). See supra note 108 and accompanying text.
169. Teague, 489 U.S. at 316. See supra note 102.
170.
See supra notes 53-55 and accompanying text.
171.
Teague, 489 U.S. at 316.
172. Id.
556
SANTA CLARA LAW REVIEW
[Vol. 31
holding ensures this meaning. First, a broad definition of "new
rule" is employed so as to implicate the greatest possible num7
ber of decisions that might be raised on habeas review.
Second, the exceptions which receive retroactive application,
and therefore adjudication, are defined in the narrowest of
terms. Any petition asserting a rule falling within the general
prohibition against retroactive treatment is dismissed and no
advisory opinion may be written. The end result, with minor
exceptions, is no development of procedural law on habeas
corpus review.
The question still remains as to why the majority insists on
clothing its pronouncements as reiterations of Harlan's position on retroactivity. One possible motive relates to the fact
that Harlan's approach was less severe in its overall effect on
habeas review. Under Harlan's approach, there was a great
chance that a rule would not be characterized as "new," or if
fou nd to be "new," there was a fair chance that the rule would
fall under one of the two exceptions. In either event, the
Court would be free to review a petitioner's claim. Thus, an
alleged adherence to Harlan's test provides the appearance of a
Court willing to review writs of habeas corpus; a general rule
that criminal procedure cases will no longer receive habeas
review does not.
The Court may want to maintain an appearance of receptiveness to habeas review in order to forestall legislative acCourt who is
tion, 7 4 because "[i]t is Congress and not this ' "175
'responsible for defining the scope of the writ.
An explicit narrowing of the scope of habeas review might provoke reformative legislative action. A veiled crusade, on the other
hand, might not. Yet, as Justice Brennan said, the Court's crusade is a "thinly veiled" one, and if it is agreed that the Court
is actively pursuing policies better left to Congress, then Congress must now step in and re-establish what it believes to be
the proper scope of the writ of habeas corpus.
173. See Butler v. McKellar, 110 S. Ct. 1212 (1990).
174. Justice Rehnquist firmly supports legislation which would limit the number
of habeas petitions available to defendants. See Kornhauser, Quick Snap: Rehnquist
Punts Habeas Reform to Hil, Legal Times, Oct. 2, 1989, at 6, col. 1.
175. Butler, 110 S. Ct. at 1226 (Brennan, J., dissenting). Supra note 145 and
accompanying text.
1991]
ANALYSIS OF TEAGUE V. LANE
VI. PROPOSALS
A. Judicial Treatment
The Supreme Court has intentionally limited the scope of
habeas review. Thus, in proposing methods to counteract the
effects of Teague v. Lane and its progeny, it must be assumed
that the current Supreme Court will not likely reverse itself.
Yet, there are steps that a willing Court could take to better
apply a retroactivity doctrine under the current Teague framework.
The Supreme Court should abandon the threshold-inquiry
requirement for the Teague retroactivity approach. Essential to
an effective application of the principles of Teague is a clear
and correct statement of the rule in question. Accepting a habeas petitioner's asserted claim with no inquiry as to its meaning or its merits will do little to further the interests of Teague.
Therefore, courts applying Teague must be allowed an opportunity to arrive at a common understanding of the challenged
rule. The small amount of law created by such clarifications is
a small price to pay for the increased clarity which will result.
It is further proposed that the Supreme Court, in the interest of effectuating its own doctrine, provide a precise definition of what constitutes a "new" rule. In Harlan's original analysis, he contrasted the gradual development of law with those
decisions which one could refer to a point when the Court
clearly would have decided differently.' Although somewhat
ambiguous, this standard is less ambiguous than the
reasonable-minds-can-differ standard currently dictated by Butler v. McKellar. Under the proposed standard, prior case law
would be of greater help because the Court could point to
specific instances when, in fact, it did decide differently.
An important inquiry which has not been made is whether
a rule is "new" as to a particular defendant. A provision should
be made for the petitioner who raises an issue prior to that
issue's embodiment in a subsequently announced rule. In this
instance, it can be said that the rule is not new to the petitioner because he has alleged the rule's existence and correctness
all along. This proposed exception to Teague rewards the peti-
176. See supra note 58 and accompanying text.
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tioner who believed he had a valid complaint before subsequent law proved him right. In addition, if a rule is termed
"new" under another legal doctrine such as writ abuse 7 ' or
procedural default, the Court should indicate if these defini8
tions carry over for the purpose of retroactivity analysis.""
B.
Legislative Treatment
Congress, if not satisfied with the expressions of the Supreme Court as dictated in Teague, should speak on the matter
itself. As amended, the Habeas Court Act of 1867 should read
as follows:
[T]he several courts of the United States ...
within their
respective jurisdictions, in addition to the authority already
conferred by law, shall have power to grant writs of habeas
corpus in all cases where any person may be restrained of
his or her liberty in violation of the Constitution, or of any
treaty or law of the United States regardless of the state of the
law at any point up to and including the time of the person's
final conviction. A peison whose liberty may be restrained in
violation of the Constitution and who comes before the several
courts within their respectivejurisdictions under a writ of habeas
corpus is entitled to retroactive application of all laws unless
specifically precluded by Act of Congrss (amended portion
italicized).
This amendment would unmistakably convey to the Supreme Court that the course taken in Teague is inconsistent
with the proper scope of habeas corpus review. The amendment represents a return to full retroactive application of the
law on habeas review. A similar amendment could be enacted
to reinstate the Linkletter balancing test.
VII.
CONCLUSION
Prior to Teague, the approach to retroactivity centered
around an unstructured balancing of the interests unique to
the particular rule in question. Justice Harlan offered repeated
criticism of this methodology and carefully set forth an alternative. The Supreme Court embraced this alternative proposition
177. See generally McCleskey v. Zant, 59 U.S.L.W. 4288 (1991) (habeas corpus
petition denied based on writ abuse).
178. See supra note 114.
1991]
ANALYSIS OF TEAGUE V. LANE
in its modification of retroactivity in Teague v. Lane. Two circuit courts have subsequently applied the Supreme Court decision with varied results.
Teague v. Lane represents a roundabout way of reducing
the amount of habeas litigation. The decision was designed
specifically to cease the creation and use of new constitutional
rules of criminal procedure under habeas corpus jurisdiction.
This comment has provided the historical backdrop to the
decision, articulated the decision itself, and introduced examples of its application. This comment further pointed to discrepancies in Harlan's original retroactivity doctrine and the
one adopted by Teague and identified additional problem areas. The proposals provided by this comment focused on solving some of the difficulties of the Teague doctrine and provided a legislative means for rejecting the doctrine.
There will never be a "right" time to dismantle habeas
corpus. However, in light of the many procedural reforms the
Rehnquist court has made, it seems especially inappropriate to
do so now. The dangers of the Supreme Court over-extending
its scope of habeas review, which Harlan saw as imminent,
have long since ceased to exist. What is left is simply an unwillingness to allow any meaningful adjudication of procedural
violations on habeas review, and this, standing alone, is cause
for concern.
By limiting its own ability to review habeas claims, the
Supreme Court has reduced the number of petitions that it
can adjudicate on the merits. Perhaps more importantly, the
Court has greatly reduced its ability to develop rules of criminal procedure on habeas review. The typical rule, which the
Court refuses to consider under Teague v. Lane,'7 9 is the rule
which has refined and modernized the criminal procedure
process. The result is a stunted procedural system which does
not respond to changing societal concepts of fairness. The
Court has expressed the view that it no longer wishes to develop procedural law through habeas review. Moreover, the Court
is beginning to see its role in upholding constitutional stan-
179. 489 U.S. 288 (1989).
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dards as no longer necessary. Thus, a habeas petitioner asserting a valid constitutional violation may knock, but he will receive no answer. Has the price of silence ever been so high?
Sharon K. Alexander